Immigration News

The U.S. Department of State announced late last week that consular officers have an expanded ability to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same visa classification as they currently hold. The prior policy allowed for an interview waiver for individuals whose nonimmigrant visa expires within 24 months. The current, revised policy allows for an interview waiver for individuals whose nonimmigrant visa expires within 48 months. This expanded policy is in effect now through December 31, 2021.

This is a positive change to nonimmigrant consular processing that will allow for more streamlined visa processing as well as will reduce the risk of COVID transmission as fewer visa applicants will need to physically visit U.S. consulates and embassies for in-person interviews. Visa applicants who believe they may be eligible for an interview waiver should consult the website of the U.S. consulate or embassy they will be renewing through for further instructions and eligibility information.

The COVID-19 pandemic has resulted in the issuance of several regional travel bans that apply to foreign nationals who have been physically present in a particular country within 14 days of seeking to enter the United States. Individuals who have been physically present in counties such as the Schengen area, the UK and Ireland are thus not allowed to enter the United States unless they qualify for an exception to the ban.

As of March 2, 2021, the U.S. Department of State revised its policy regarding eligibility for a National Interest Exception for travelers from the Schengen area, the UK and Ireland. Unfortunately, this updated National Interest Exception policy is more restrictive than the previous standard. Prior to March 2, 2021 European travelers such as technical experts and specialists, senior-level managers and executives, treaty-traders and investors, professional athletes, and their dependents subject to the travel ban needed to show that their travel would contribute substantially to the U.S. economy in order to qualify for an exception. The new post-March 2, 2021 standard enables travelers to qualify for a National Interest Exception if their travel will provide “vital support for critical infrastructure.” (Presidential Proclamation 10143). This heightened standard will make it more challenging for travelers to secure a National Interest Exception from U.S. Consulates and Embassies.

Therefore, as of March 2, 2021 the National Interest Exception policy for the Schengen area, the UK and Ireland encompasses the following classes of travelers seeking admission into the United States:

1. Travelers coming to the US to provide “vital support for critical infrastructure”
2. F-1 and M-1 students
3. J-1 students, journalists and academics

Individuals who fall into these categories may be considered for a National Interest Exception and admission into the United States. Until complete resumption of routine visa services, applicants who appear to be subject to entry restrictions related to COVID-19 will not be processed for a visa interview appointment unless the applicant also appears to be eligible for a National Interest Exception under the revised standard.

The Public Charge Rule is finally dead, as the Department of Homeland Security (DHS) has announced that it will no longer pursue appellate review of judicial decisions invalidating or enjoining enforcement of the 2019 Public Charge Final Rule.  Consistent with Executive Order 14012 directing a comprehensive review of the rule, DHS determined that continuing to defend the rule is, “neither in the public interest nor an efficient use of limited government resources.”

DHS has announced that once the public charge rule is permanently vacated, it will be following the 1999 interim field guidance on the public charge inadmissibility provision, at which time the Form I-944 will no longer be required.

We will be updating our blog with the latest developments as we learn of them.

The FY 2022 H-1B registration period begins tomorrow, Tuesday, March 9, 2021 at 10am MT, and runs until Thursday, March 25, 2021 at 10am MT.  USCIS will notify the “winners” by March 31, 2021.  If your employee is “selected” to proceed with an H-1B (i.e. if you employee “wins the H-1B lottery”), then you must file your H-1B petition with USCIS between April 1, 2021 and June 30, 2021.

On March 5, 2021, USCIS provided tips on how to avoid the most common errors (creating the wrong type of USCIS online account and registering an employee more than once) in completing a registration for the H-1B cap. USCIS reminds employers to select “I am an H-1B Registrant” as the account type when setting up a registration account and provided guidance on how to avoid duplicate registrations for the same employee.  Click here for more information.

On February 18, 2021, the U.S. Citizenship Act was formally introduced to Congress. The proposed bill calls for comprehensive reform to all areas of immigration law. President Biden declared on this first day in office that he intended to “restore humanity and American values to our immigration system”. The massive, 353-page bill, proposes innovative solutions to the current and outdated immigration framework that has failed to keep up with the country’s needs.

The bill provides for a pathway to permanent residency and eventually citizenship for those with DACA, TPS or H-2A status.

With the goal of stimulating economic and scientific development, the bill proposes many changes to employment-based immigration including:

• Clearing visa backlogs by increasing per-country caps and exempting Ph.D. graduates working in STEM fields from the green card quota. 
• Prioritizing the distribution of H-1B visas by wage offered by employers.
• Work authorization for H-4 dependants.
• Increasing penalties for employers who violate labor laws.
• Extensions of F-1, H-1B, L-1, and O-1 status if the foreign national has a labor certification or I-140 immigrant visa petition pending for over a year.

While the bill is only in the early stages of the legislative process, it will certainly be subject to debate and revisions in an effort to garner bipartisan support.

On April 22, 2020, former President Trump signed Proclamation 10014 temporarily suspending the entry of certain immigrants into the United States in light of the COVID-19 pandemic. On June 22, 2020, former President Trump signed Proclamation 10052 continuing Proclamation 10014 issued on April 22, 2020, and suspending the entry of certain nonimmigrants. On December 31, 2020, former President Trump issued a proclamation continuing Proclamations 10014 and 10052 until March 31, 2021.

On February 24, 2021, President Biden rescinded Presidential Proclamation 10014 which prohibited the entry of certain immigrants into the United States due to possible harm to economic interests due to the COVID-19 pandemic. With President Biden’s February 24, 2021 order, the immigrant visa ban has now been revoked. However, at this time Presidential Proclamation 10052 suspending the entry of nonimmigrant workers for the same reasons remains in place. With the rescission of Presidential Proclamation 10014, the Department of State provided instructions to visa applicants who were previously subject to the ban on entry due to PP 10014. The Department of State has also updated its guidance related to National Interest Exemptions (NIEs) for individuals subject to Presidential Proclamation 10052; eligibility requirements for NIEs appear to be unchanged, however.

The geographic COVID-19 related Presidential Proclamations 9984, 9992, and 10143, which suspend entry into the United States of foreign nationals who have been physically present in the People’s Republic of China, Islamic Republic of Iran, Schengen Area, United Kingdom, Republic of Ireland, Brazil, and South Africa, in the 14-day period before seeking entry into the United States, remain in effect, with limited exceptions.

The attorneys at Curray York & Associates will continue to closely monitor potential changes to the COVID-19 related travel bans, and provide updates when possible. For specific questions, please contact our office to schedule a consultation with one of our attorneys.

COVID-flyer-students-PDF

On February 10, 2021, the U.S. State Department announced that students traveling from the Schengen Area, U.K., and Ireland who currently possess a valid visa will no longer need to seek a National Interest Exception (NIE)  to travel to the United States. Instead, they will be automatically considered under a general NIE and will be able to travel to the United States without needing to contact a U.S. embassy or consulate prior to travel.

F-1 and M-1 students who do not possess a valid visa are still required to obtain a visa as they normally would. Students seeking to apply for a new F-1 or M-1 visa should check the status of visa services at the nearest embassy or consulate. If the applicants are found otherwise qualified for an F-1 or M-1 visa, they will automatically be considered for a NIE to travel.

Business travelers, investors, academics, J-1 students, journalists, and treaty traders are still being directed to contact the nearest U.S. embassy or consulate before traveling to apply for a national interest exception.

The attorneys at Curray York & Associates will continue to monitor the situation and provide updates to this blog as we become aware of them.

Check out our announcement in Law Week Colorado welcoming Breanne Johnson back to Curray York & Associates, and welcoming attorneys Adrianna Romero Quezada and Sarah Collins to the firm!

Curray York & Associates Adds Three | Law Week Colorado

Canada has been vigilant in their response to the COVID-19 pandemic. This is particularly exemplified by Canada’s most recent travel restrictions for those trying to cross the border into Canada via land or air.  Canadian citizens, Canadian permanent residents and persons registered as Indians under the Indian Act are subject to Canada’s preventative COVID-19 protocols. As such, planning a trip back to Canada from the United States will result in a series of regulated quarantine and testing measures.

Canada’s policies regarding what is required for entry into Canada is changing and evolving almost daily. Therefore, international travelers should check the Canada Border Services Agency (CBSA) website regularly when planning to travel. As of today, Canadians returning home via air travel will be required to adhere to the following protocols:

• All travelers must wear a non-medical mask or face covering when they arrive in Canada.
• Before boarding the flight to Canada, travelers must submit a detailed quarantine plan to the Canadian government.
• All air travelers must provide proof of a negative COVID-19 test to the airline before boarding international flights to Canada. The test must be taken within 72 hours of the scheduled flight departure.
• Upon arrival in Canada and before leaving the airport, travelers will be required to take another COVID-19 test.
• Following the arrival test, travelers will need to stay in a pre-authorized hotel for 3 nights while they await the results of the COVID-19 test they received on arrival.      
  • Note that travelers must pay for their hotel, as well as all associated costs for food, cleaning and security (and potentially COVID testing)

All hotels will be located near one of the 4 Canadian airports currently accepting international flights:

1. Vancouver International Airport
2. Calgary International Airport
3. Toronto Pearson International Airport
4. Montreal-Trudeau International Airport

• Once released from the hotel through a negative COVID-19 test, travelers must then still quarantine for 14 days and must take another COVID-19 test at the end of their 14-day quarantine period.
• Travelers who have COVID-19 symptoms or who develop symptoms of COVID-19 during the hotel stay or quarantine period will be required to comply with mandatory isolation instructions.
• Limited groups of people are exempt from these policies. See the CBSA website for more information on who is exempt.
• There are very harsh monetary penalties for failure to comply with these preventative measures.

Similarly, Canadians seeking to enter Canada via land will be required to provide proof of a negative COVID-19 test taken within 72 hours of arrival at the border. Beginning on February 22, 2021, Canadians returning home will also be required to take a COVID-19 test upon arrival in Canada as well as at the conclusion of their mandatory 14-day quarantine period. Travelers entering by land also must submit a detailed quarantine plan in advance of their arrival into Canada.

Given the increase of new COVID-19 variants and the limited number of available vaccines doses, Canada is putting into place some of the strictest travel and border restrictions in the world and is sending a strong message to their citizens and residents that now is not the time for international travel.

For more and updated information, see: https://www.cbsa-asfc.gc.ca/services/covid/canadians-canadiens-eng.html; https://www.cbsa-asfc.gc.ca/services/covid/menu-eng.html